Friday, May 25, 2012

The Public Refusal of Privatization: On the "Political Content" of the US Bank Blockade (A Refutation of Brownstein and Amar)

On March 21, 2012, the Board of the Davis Faculty Association issued a petition in support of UC Davis students and faculty facing criminal charges due to their alleged participation in a blockade of the US Bank Branch on campus. The cases of the students and faculty charged were forwarded to the District Attorney for prosecution at the request of the UC Davis administration. The DFA petition called upon the UC Davis administration to “recognize the political content of the US Bank blockade rather than treating it as a criminal matter,” and it asked the administration to pressure the District Attorney to excercise his option to drop the charges against student and faculty protesters who had allegedly participated in the blockade.

On April 27, Alan Brownstein and Vikram Amar published a Viewpoints piece in the Sacramento Bee in which they argue that the DFA’s petition misunderstands the “basics of freedom of speech and academic freedom,” and they therefore suggest “the need to use this episode as a ‘teachable moment.’” As law professors, Brownstein and Amar feel they are in a position to offer some instruction about these “basics.” But their lesson fails to address either the content of the DFA’s petition or that of the political action under discussion.

The petition issued by the DFA does not, in fact, appeal to free speech or academic freedom in its treatment of the bank blockade. It does not appeal to the First Amendment. Since Brownstein and Amar consider themselves experts on the First Amendment, it is convenient for them to ignore this fact and focus on what they think they know. Thus they write, “the important starting point in our First Amendment analysis is that a blockade is not constitutionally protected speech.” This “starting point” already misses the point, because “constitutionally protected speech” is not what is at issue in the DFA petition. While Brownstein and Amar may be considered experts on the law, they do not demonstrate their expertise in reading texts and reconstructing arguments. The DFA petition urges the UC Davis administration to “recognize the political content of the US Bank blockade rather than treating it as a criminal matter.” What does this mean?

To recognize the political content of the blockade, one has to understand its context: UC Davis has a special contract with US Bank, which generates funding for the university from US Bank revenue, in exchange for special advertising services and privileged branch and ATM placement. US Bank profits from student loans, and therefore from rising tuition. The administration gathers funds from US Bank profits, and therefore has an incentive to increase tuition, rather than opposing state cuts to UC funding. Moreover, a US Bank logo appears on all UCD student cards, and these can be used as debit cards at US Bank. To recognize the political content of the US Bank blockade is to understand it within this context. Demonstrators argued that, at a public university, this sort of contract with a private corporation constitutes a conflict of interest. That is: they argued that it is contrary to the public character of the UC.

What this argument brings into focus is a serious problem which Brownstein and Amar fail to understand. They write: “the argument that a public university should pick and choose whether obstruction should be permitted or not based on the political content of any particular blockade is also a dubious proposition.” They fear that if a public university did so, the consequence would be that “the university...morphs into a political institution committed to particular perspectives – so much so that it excuses violations of law in support of its own political positions.”

These arguments indicate a curious incapacity to recognize a basic fact, a fact central to the political content of the US Bank blockade: because the University of California is a public university, as Brownstein and Amar note, it must be “committed to a particular perspective”: quite precisely,that of a public university. The “political position” of the US Bank blockade is precisely its insistence that the University commit to this perspective. So then, here we have a political position to which the University of California can, should, and must be committed: that of upholding its character as a public institution.

This is what the DFA petition asks the UC Davis administration to recognize in pointing to the political content of the US Bank blockade. And this is what Brownstein and Amar are unable to recognize. Their arguments are question-begging, because they assume exactly what is compromised by the process of privatization, which the US Bank blockade opposes: the public character of the University of California.

In a longer version of their piece published in the Jurist, Brownstein and Amar close their piece by stating that “the communicative power of civil disobedience gains its force by protestors demonstrating the strength of their convictions by their willingness to be arrested and sanctioned for violating the law.” But the willingness of demonstrators to be arrested and sanctioned for violating the law does not mean they should be arrested and sanctioned, and the point of civil disobedience actions is precisely to make clear this disjunction—a disjunction which depends upon the political content of the action. In fact, the “communicative power” of a civil disobedience action does not fundamentally rely upon a willingness to be arrested, but rather upon the capacity of citizens to recognize the political content of the action, its contextual justification. It is this sort of recognition which the DFA petition demands.

Nathan Brown, on behalf of the Board of the UC Davis Faculty Association

Assistant Professor
Department of English
Program in Critical Theory
University of California at Davis

1 comment:

  1. Take a look at this exchange involving UC President Mark Yudof where he confuses the Third Amendment of the United States Constitution with the Second Amendment.

    For someone who professes to be a “First Amendment scholar,” this is a remarkable display which cannot simply be chalked up to a momentary lapse:

    PENELOPE “PENNY” HERBERT (10:53): Will the Regents take a position on or endorse any of the tax initiatives?

    MARK YUDOF (10:58): Well, Penny — you remember there’s the First Amendment which is um, ah, freedom of speech and religion? And Second is quartering of soldiers, you know. Fourth, um, has to do with uh certain types of um, uh, um, searches and testifying — and I’m taking the Fifth Amendment today. I shouldn’t answer your question, but I will.


    The issues involved that Brownstein and Amar discuss are not simple ones that are easily and quickly resolved by a quick op-ed piece. That is why we usually take our time in academia to explore issues in more depth before issuing quick, rough-and-ready analyses.

    This is perhaps a problem related to the fact that a law degree is a “professional” degree (i.e., involving the “practice” of law) and not an “academic” degree per se, as I understand it.